Citation Nr: 18149621 Decision Date: 11/14/18 Archive Date: 11/13/18 DOCKET NO. 16-30 324 DATE: November 14, 2018 ORDER The appeal for status as a surviving spouse by the appellant is denied. FINDINGS OF FACT 1. The appellant divorced the Veteran in January 2009. 2. The Veteran died in December 2009. CONCLUSION OF LAW The criteria for recognition as the surviving spouse of the Veteran for purposes of VA death benefits have not been met. 38 U.S.C. §§ 101, 103, 1310, 1541; 38 C.F.R. §§ 3.1, 3.3, 3.5, 3.50, 3.55, 3.204, 3.206. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1961 to February 1969. The Veteran died in December 2009. 1. The appeal for status as a surviving spouse by the appellant DIC benefits are payable to the surviving spouse of a veteran if the veteran died from service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5(a). Basic entitlement to nonservice-connected death pension benefits for a surviving spouse of a veteran exists if: (1) the veteran had qualifying service under 38 U.S.C. § 1521(j); or (2) the veteran was, at the time of death, receiving or entitled to receive compensation or retirement pay for a service-connected disability based on service during a period of war; and (3) and the surviving spouse meets the net worth requirements of 38 C.F.R. § 3.274 and has an annual income not in excess of the applicable maximum annual pension rate specified in 38 C.F.R. § 3.23. 38 U.S.C. § 1541; 38 C.F.R. § 3.3(b)(4). A “spouse” is defined as a person whose marriage to a veteran is valid under the law of the place where the parties resided at the time of marriage or the law of the place where the parties resided when the right to benefits accrued. 38 U.S.C. § 103(c); 38 C.F.R. §§ 3.1(j), 3.50. A “surviving spouse” is defined in relevant part as a person: (1) whose marriage to a veteran was valid under the law of the place where the parties resided at the time of marriage or the law of the place where the parties resided when the right to benefits accrued; (2) who was the spouse of the veteran at the time of the veteran’s death; (3) who lived with the veteran continuously from the date of marriage to the date of the veteran’s death (i.e. continuous cohabitation); and (4) who, except as provided in 38 C.F.R. § 3.55, has not remarried or has not since the death of the veteran (and after September 19, 1962) lived with another person and held himself or herself out openly to the public to be the spouse of such other person. 38 U.S.C. § 101(3); 38 C.F.R. § 3.50(b). The requirement that there must be continuous cohabitation from the date of marriage to the date of death of the veteran will be considered as having been met when the evidence shows that any separation was due to the misconduct of, or procured by, the veteran without the fault of the surviving spouse. Temporary separations which ordinarily occur, including those caused for the time being through fault of either party, will not break the continuity of the cohabitation. 38 C.F.R. § 3.53(a). If the evidence establishes that the separation was by mutual consent and that the parties lived apart for purposes of convenience, health, business, or any other reason which did not show an intent on the part of the surviving spouse to desert the veteran, the continuity of the cohabitation will not be considered as having been broken. The statement of the surviving spouse as to the reason for the separation will be accepted in the absence of contradictory information. State laws will not control in determining questions of desertion; however, due weight will be given to findings of fact in court decisions made during the life of the veteran on issues subsequently involved in the application of this section. 38 C.F.R. § 3.53(b). Photocopies of documents necessary to establish birth, death, marriage, or relationship under the provisions of 38 C.F.R. §§ 3.205 through 3.215 are acceptable as evidence if VA is satisfied that the copies are genuine and free from alteration. 38 C.F.R. § 3.204(c). The appellant has the burden to show status as a surviving spouse by a preponderance of the evidence to have standing. See Colon v. Brown, 9 Vet. App. 104, 107-08 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the criteria for recognition as the surviving spouse of the Veteran for purposes of VA death benefits have not been met. The appellant has contended that, although she was divorced from the Veteran at the time of his death, she was attending to his healthcare needs and should be afforded status as a surviving spouse. The appellant has not remarried since divorcing the Veteran in January 2009. The record indicates that the AOJ essentially accepted the appellant had previously been married to the Veteran, but determined that she did not have the necessary standing for entitlement to death benefits because they were divorced at the time of the Veteran’s death. The record shows that the appellant married the Veteran twice. The first marriage lasted from January 2005 to August 2007. The appellant and Veteran married a second time in November 2007 and divorced again in January 2009. The relevant marriage and divorce decrees are part of the electronic claims record. The Veteran died in December 2009. In the April 2018 Board hearing, the appellant described how she divorced the Veteran but continued to stay at his home and assist in his care while he underwent healthcare treatment. The appellant testified that after divorcing the Veteran, eventually the Veteran’s adult children legally removed the appellant from the Veteran’s home and life. However, the appellant did not contend that she was in fact still married to the Veteran at the time of his death. The appellant contended that the Veteran planned to remarry the appellant again in January 2010, however the Veteran died prior to that time frame. The Board recognizes the appellant’s reported caretaker role and family history with the Veteran and his family; however, she does not meet all of the requirements for recognition as a surviving spouse for purposes of DIC and death pension benefits based on the foregoing information. In particular, she was not married to the Veteran at the time of his death.   As such, she has not established that she has the necessary standing to claim the benefits at issue, and the claims must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994). DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Miller, Associate Counsel